Citation Nr: 1752554 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-19 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death, to include as due to herbicide exposure. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Evelyn Maxwell ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran who served on active duty from September 1963 to July 1966. He also had service in the Republic of Vietnam. He died in July 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Seattle, Washington Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2016, the appellant testified at a video-conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. During the hearing, the undersigned held the record open for a 60-day period, in order to allow the appellant to submit additional evidence. The appellant submitted relevant evidence in November 2016 without a waiver of initial consideration by the agency of original jurisdiction (AOJ). Since the substantive appeal was received after February 2, 2013, no waiver of initial AOJ consideration is necessary and the Board may proceed. See 38 U.S.C. § 7105(e) (2012). FINDINGS OF FACT 1. The Veteran died in July 2010, and the initial death certificate lists his primary cause of death as pancreatic cancer. 2. The Veteran's pancreatic cancer did not begin during, or for several decades after, his active duty service, and was not otherwise caused by his service. 3. The Veteran served in the Republic of Vietnam during the Vietnam Era; although herbicide exposure is presumed, the Veteran's pancreatic cancer is not a disease which is eligible for presumptive service connection. 4. The Veteran's service-connected disabilities did not cause or contribute to his death. 4. At the time of his death in July 2010, the Veteran had been in receipt of a total disability rating based on individual unemployability (TDIU) from October 2004. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.312 (2017). 2. The criteria for DIC pursuant to 38 U.S.C.§ 1318 are not met. 38 U.S.C. §§ 1318, 5107 (2012); 38 C.F.R. §§ 3.22, 3.159 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Analysis The appellant contends that she is entitled to DIC based on service connection for the cause of the Veteran's death, to include as due to herbicide (Agent Orange) exposure; or under 38 U.S.C. § 1318. In a January 2012 statement, she specifically noted that her theory of entitlement did not include secondary service connection (i.e. secondary to service-connected diabetes mellitus, type II). Service Connection - cause of death, to include as due to herbicide exposure Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The cause of the Veteran's death, pancreatic cancer (malignant tumor), is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303 (b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To establish entitlement to service connection for the cause of a veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). The service connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). To be considered a contributory cause of death, it must be shown that the service connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312 (c)(1). In the case of veterans who have been exposed to an herbicide agent during active service, presumptive service connection is available for certain listed diseases. 38 C.F.R. § 3.309 (e) (2017). Relevant to the issue on appeal, pancreatic cancer is not listed. The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). A veteran who "during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116 (f) (2012); 38 C.F.R. § 3.307 (a)(6)(iii) (2017). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. In this case, the Veteran's Certificate of Death indicates that he died at his residence in 2010. The immediate cause of death was reported as pancreatic cancer. His death was not ascribed as due to, or as a consequence of, any other condition and no other disorder was listed as a significant condition that contributed to the Veteran's death but did not result in the previously stated underlying cause. No autopsy was performed. During the time of the Veteran's death service connection was in effect for PTSD; diabetes mellitus, type 2; tinnitus; and bilateral hearing loss; however, service connection was not in effect for pancreatic cancer at the time of the Veteran's death; therefore, the appellant seeks service connection for the cause of the Veteran's death based on a condition not yet service connected. Indeed, the appellant asserts that service connection for the cause of the Veteran's death is warranted as his pancreatic cancer was incurred as a result of his Agent Orange exposure while in the Republic of Vietnam. She does not contend that any of service-connected conditions caused the Veteran's death. Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence weighs against a finding that the pancreatic cancer had its onset during service (including chronic symptoms of pancreatic cancer), had continuous symptoms since service, manifested to a compensable degree within a year of service separation, or is otherwise causally or etiologically related to the period of active service, to include exposure to herbicide agents in service. Service treatment records show no complaints, findings, or treatment for problems involving the pancreas or pancreatic cancer. In the July 1966 service separation examination, a clinical evaluation of the Veteran's systems, including of the abdomen and viscera, were normal and there was no indication of any disorder or symptoms. Thus, the available evidence contemporaneous to service does not show that pancreatic cancer, or any chronic symptoms related to the diagnosis, manifested during service. Because the available service medical evidence was generated contemporaneous to service and is likely to reflect accurately the Veteran's physical state during that time, the evidence is of great probative value and weighs against finding that the Veteran had any chronic symptoms of pancreatic cancer during service. Also, the post-service evidence shows that pancreatic cancer did not manifest until many years after service. In March 2010, the Veteran was diagnosed with pancreatic cancer. The post-service medical evidence showing pancreatic cancer first diagnosed and treated many years after service is evidence against finding that the Veteran had any chronic symptoms of pancreatic cancer during service. Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). The Board next finds that the weight of the evidence demonstrates that pancreatic cancer and/or its symptoms have not been continuous since separation from service in July 1966 and that pancreatic cancer did not manifest to a compensable degree within one year of service. As stated above, private treatment records document pancreatic cancer was diagnosed in March 2010, approximately 44 years after service separation. This evidence weighs against finding that a continuity of symptoms of pancreatic cancer has manifested since service or that pancreatic cancer manifested to a compensable degree within one year of service separation; therefore, presumptive service connection for a chronic disease (i.e., pancreatic cancer) is not warranted. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The Board further finds that the weight of the evidence is against finding a relationship between pancreatic cancer and service. Indeed, none of the post-service treatment records document a relationship between the Veteran's pancreatic cancer and service, to include Agent Orange exposure. In a February 2011 medical opinion, the examiner indicated that there is ample evidence in the medical literature that tobacco use and alcohol use are associated with the development of carcinoma of the pancreas. Notably, in a March 2010 VA treatment report, the Veteran reported a 40-year history of smoking 1 pack of cigarettes per day. He also reported that he drinks 4-5 beers, 5 days per week. The Board observes that there are no opinions or any competent medical evidence to the contrary. In light of the competent and probative 2011 VA opinion, the Board finds that the preponderance of the evidence is against a finding that the cause of the Veteran's death is related to his active service, to include presumed in-service herbicide exposure. The Board is certainly sympathetic to the appellant's loss and her claim that the cause of the Veteran's death was service-related. Unfortunately, however, the appellant, as a lay person, is not shown to have any medical education, training, or experience so as to be competent to render such a medical conclusion, which clearly requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a) (2017). DIC- 38 U.S.C. § 1318 A surviving spouse may establish entitlement to DIC benefits under 38 U.S.C.§ 1318 in the same manner as if the veteran's death were service connected where it is shown that the veteran's death was not the result of willful misconduct, and the veteran: (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was continuously rated totally disabled for a period of not less than 5 years from the Veteran's discharge from active duty; or (3) was rated by VA as totally disabled for a continuous period of not less than one year immediately preceding death if the veteran was a former prisoner of war. 38 U.S.C.§ 1318 (b); 38 C.F.R. § 3.22 (a). At the outset, the Board observes that the appellant and her representative indicate that an earlier effective date is warranted for the award of the Veteran's total disability rating based on individual unemployability (TDIU). Indeed, she testified that the Veteran was unable to work due to his PTSD since early 2000 (i.e., 10 years before his death). See hearing transcript, page 14. In support of her contentions, in November 2016, the appellant submitted medical reports from 2001 to 2004 from C.D.W.,MD that documents the Veteran was currently receiving treatment for a psychiatric disability. In the September 2001 report, Dr. C.D.W. noted that the Veteran's condition was under reasonably good control with medications. He also noted that despite the good control, the Veteran would still experience anxiety if he had to serve on a jury. He noted that the Veteran informed him that he had to back out of 4 interviews because of fear. Upon review, the Board notes that VA first received the Veteran's claim for TDIU on October 29, 2004. He noted on the claim that he last worked full-time on February 15, 2003. As noted, TDIU was awarded, effective October 29, 2004, the date of the claim for service connection. There was no earlier claim submitted by the Veteran. Consequently, the October 29, 2004 date is correct. The Veteran was discharged from active duty in July 1966. As noted, he was awarded a TDIU from October 2004 (6 years prior to his death). He died in July 2010 and, therefore, his total rating was not in effect for more than 10 years at the time of his death. In addition, the record does not reflect, nor does the appellant contend, that the Veteran was a former prisoner of war. Therefore, entitlement to DIC benefits under 38 U.S.C.§ 1318 (b)(1) or (3) is not warranted. Finally, to the extent that there is any claim that the Veteran had been rated as totally disabled for greater than 5 years at the time of his death, and that the criteria for entitlement to DIC benefits are therefore met under 38 U.S.C. § 1318 (b)(2); The Board observes that the provision is only applicable where a veteran was continuously rated totally disabled from his or her discharge from active duty. In this case, the Veteran was not rated as totally disabled until October 2004, 38 years after his discharge from active duty in July 1966. Therefore, the criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 (b)(2) have not been met. ORDER Service connection for the cause of the Veteran's death, to include as due to herbicide exposure is denied. DIC benefits pursuant to the provisions of 38 U.S.C. § 1318 is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs